ESPO welcomes the communication from the European Commission on
a European Ports Policy as it generally reflects the balanced
picture that emerged from the stakeholder consultation. ESPO further
welcomes the broad perspective of the communication and its general
focus on soft law measures and instruments.

The European port scene is becoming more diverse in terms of the
number of ports involved and the scope of port functions and
services, leading to more routing options for shippers. ESPO
believes that the Commission should refrain, now and in the future,
from any interventionist policies which, directly or indirectly, aim
at reorienting traffic flows in Europe. The Commission can however
help to ensure that every European port is able to use its full
potential. Bottlenecks related to - inter alia - lack of reliable
hinterland connections to ports can furthermore be addressed through
the Commission’s general transport (and especially rail
freight) policy as well as existing regional development, cohesion
fund and TEN-T programmes.

Provided that a wider range of port development needs is taken
into consideration, ESPO would very much welcome guidelines on the
application of Community environment legislation to port
development. ESPO hopes that the aim to produce these in 2008 can be
maintained and readily offers the experience and expertise of its
members as input. The Commission should also consider measures to
further reinforce the legal status of port development projects.
Equally, existing and pending environmental legislation should be
simplified and regulatory bottlenecks should be solved, especially
with regard to management of water bodies and sediments.

ESPO principally supports the creation of a European Maritime
Space without Barriers as a means to simplify administrative
procedures for intra-EU maritime transport. Paper bureaucracy should
however not be replaced by e-bureaucracy and IT-based solutions
should be cost-effective, also for smaller and medium-sized ports.

ESPO will prepare a constructive contribution to the development
of a set of generic European performance indicators to measure both
terminal performance and customer satisfaction with the overall port
product. Given the highly competitive nature of the port industry,
such an exercise should however respect commercial sens itivities.
ESPO fully shares the Commission’s ana lysis of the diversity
of port management systems existing in Europe and welcomes the
recognition of the need for port authorities to have a sufficient
degree of autonomy, including full financial autonomy.

ESPO welcomes the Commission’s intention to produce
guidelines on State aid to ports in 2008 and is ready to engage in
further discussions on the basis of the principles it has developed
earlier. ESPO further supports the extension of Directive
2006/111/EC to all merchant ports covered by the State aid
guidelines.

ESPO agrees that fairness and transparenc y obligations apply
when Member States’ authorities decide to entrust a third
party with a portion of port land for the provision of
cargo-handling services through a concession. Concessions are very
useful governance instruments for public landlord port authorities.
ESPO therefore appreciates the Commission’s recognition of the
discretionary powers port authorities should have in using them and
broadly agrees with the interpretation given in the communication.
ESPO will study how port authorities are currently using concessions
as governance tools and may produce further comments and initiatives
at a later stage.

ESPO agrees with the Commission’s interpretation of Treaty
rules with regard to technical- nautical services and labour pools.

ESPO believes that principles of transparency should apply to
port charges but finds it is equally important that, where
appropriate, the port authority can set or control these charges and
adapt them to meet the requirements of its customers and/or the
overall interest of the port. ESPO fails to understand why the
Commission singles out port dues and doubts whether there is any
added value in disseminating best practices. There should in any
case be no regulation of port charges at EU level and differential
charging for environmental or other purposes should be left to
subsidiarity.

ESPO will provide concrete input to an inventory of problems
which distort competition between EU ports and ports from
neighbouring non-EU countries.

ESPO is prepared to take on an active role in the promotion of
enhanced co-operation between cities and ports. It endorses in
particular the Commission’s proposal to have an annual
European ports open day and offers to be a partner in the
organisation of such an event. ESPO further supports the
Commission’s intention to assess the impact of security
measures on accessibility of ports but remains skeptical about the
added value of having a European model for multi-purpose access
cards.

ESPO agrees that dialogue between stakeholders can contribute
significantly to a better understanding between parties concerned
and a successful management of change. A general stakeholder
dialogue is worthwhile to pursue, both at local and European level.
Being mediators and coordinators of the various commercial and
public interests present in port communities, port authorities are
well-placed to initiate such dialogue processes. ESPO also intends
to fully partake in discussions on the agenda of a European sectoral
social dialogue committee.

The Commission should compare the different existing systems of
professional qualifications for port workers before producing a
mutually recognisable framework and should closely monitor Community
rules on safety and health of port workers.

1. General comments

ESPO welcomes the new communication from the European Commission
on a European Ports Policy as it generally reflects the balanced
picture that emerged from the stakeholder consultation which was
held from June 2006 until June 2007.

ESPO also welcomes the broad perspective of the communication
which includes topics such as capacity expansion and port-city
relations which were never thoroughly discussed at European level,
despite their vital importance for many European ports.

ESPO agrees with the general focus of the communication on soft
law measures and instruments. These match better with the diversity
of European ports than hard legislation. In this respect, ESPO
especially appreciates the Commission’s recognition of the
pivotal role of port authorities, notably with regard to the use of
concessions.

ESPO further welcomes the fact that the Commission is not
seeking to develop measures which would alter distribution of
traffic across Europe. ESPO believes this non- interventionist
policy should always prevail, now and in the future. The market, in
combination with policies of regional and national authorities, is
largely capable of finding its own solutions.

ESPO finally looks forward to continuing the constructive
dialogue with the services of the Commission and colleagues from
other stakeholder organisations on the instruments and measures
which are announced in the communication. ESPO is particularly
interested in contributing to guidelines on the application of
Community environmental legislation to port development and State
aid guidelines. ESPO encourages the Commission to produce both
before the end of 2008 and generally recommends that a clear
timeframe is maintained for all actions announced in the
communication.

This paper contains the general response of ESPO to the
principal policy issues which are raised in the communication. Some
of the comments below may be elaborated further or lead to
particular initiatives of ESPO at a later stage.

2. Economic context and challenges

ESPO would like to put the Commission’s impression that
port traffic in Europe is concentrated in a handful of north-western
European ports in a broader perspective.

1 ESPO and ITMMA (2007), ESPO
Annual Report 2006-2007 including a market report on the European
seaport industryhttp://www.espo.be/downloads/archive/02beddc2-b876-4644-8f22-b03d5b1349aa.pdf

It should first of all be specified that the percentages
mentioned in the communication, which are taken from the 2007
ESPO/ITMMA market report on the European seaport industry1,
refer to container traffic.

More importantly, the communication does not reflect the full
analysis of the ESPO/ITMMA report which clearly demonstrates that
the trend is towards participation of an increased number of
European ports on the competitive scene rather than a channeling of
traffic through only a few ports. The report for instance identifies
that the strongest growing container ports in 2006 were mostly small
and medium-sized ports located in various port ranges in Europe.

The European port scene is thus in fact becoming more diverse in
terms of the number of ports involved and the scope of port
functions and services, leading to more routing options for
shippers.

ESPO therefore recommends that the Commission takes these
developments into account before drawing any conclusions as regards
possible imbalances in the European port system.

3. Port performance and hinterland connections

ESPO agrees with the Commission that most well known European
ports can be considered efficient in economic terms but that several
bottlenecks still exist. In ESPO’s view these mainly relate to
lack of capacity in ports and lack of reliable hinterland
connections.

ESPO strongly believes that the exploration of alternative
transport routes as a means to achieve a more intensive use of all
existing ports and a more rational distribution of traffic across
Europe should always be left to the market which, in combination
with policies of regional and national authorities, is largely
capable of finding its own solutions. This is clearly demonstrated
in the section above.

The Commission should therefore indeed refrain, now and in the
future, from any interventionist policies which, directly or
indirectly, aim at reorienting traffic flows in Europe.

The Commission can however help to ensure that every European
port is able to use its full potential. Some of the measures and
tools announced or included in the Commission’s communication
may already serve this purpose, e.g. Environmental guidelines, State
aid guidelines, guidance on concessions and measures aimed at
further efficiency of port services and simplification of
administrative procedures.

In addition the Commission can stimulate the resolving of
bottlenecks through its general transport (and especially rail
freight) policy as well as existing regional development, cohesion
fund and TEN-T programmes. The 2010 mid-term review of the latter
should be used to generate more resources for hinterland connections
to ports. These funds should be allocated on the basis of objective
cost-benefit criteria and there should be no discrimination among
ports on the basis of perceived traffic imbalances.

4. Expanding capacity while respecting the environment

ESPO would first like to clarify that the need for capacity
increase is not limited to the four cases listed in the
communication. Furthermore, the suggested trade-off between city and
port development is an option which in many European ports is not
available due to the scarcity of available land and/or fixed port
boundaries.

Provided that a wider range of port development needs is taken
into consideration, ESPO would very much welcome the Commission’s
intention to produce guidelines on the application of Community
environment legislation to port development.

Such guidelines should ensure recognition of pre-existing EU and
international legal regimes for waterway and port-related
activities, introduce good governance principles on prior
consultation with port autho rities before designation of sites
under environmental Directives and clarify all outstanding
interpretation problems with the present legal framework.

ESPO hopes that the Commission is not giving up its original
ambition to produce these guidelines in 2008 and readily offers the
experience and expertise of its members in order to make progress
quickly. The recent ESPO Code of Practice on the Birds and Habitats
Directives is presented as a first concrete contribution2.

ESPO further invites the Commission to consider, in addition to
guidelines, measures which would reinforce the legal status of port
development projects and simplify existing legislation. Also, ESPO
will gratefully use the opportunity offered by the Commission’s
new Maritime Policy to submit on short notice a list of regulatory
bottlenecks related to EU environmental legislation.

3 Reference is made in
particular to the proposal for a Directive of the European
Parliament and of the Council on waste (2005/0281(COD)) and the
proposal for a Directive of the European Parliament and of the
Council on environmental quality standards in the field of water
policy and amending Directive 2000/60/EC (COM(2006)398final).

As regards management of water bodies and sediments, ESPO first
of all calls upon the Commission to ensure that ongoing legislative
proposals in these fields3 recognise that non-hazardous
sediment is not to be regarded as waste and that dredging operations
do not introduce any new pollutants into a water body. Existing
sediment contamination in the waters covered by the Water Framework
Directive should be tackled through the instruments of that
Directive (mainly the river basins plans). Ports should moreover not
be held (financially) liable for historical contamination in port
areas and navigation channels which finds its origins in upstream
sources.

As regards port reception facilities and ship emissions, ESPO
recommends a pragmatic course of action, refraining from any
measures which would interfere with the tariff structure of ports.
Economic incentives such as differential charging should be left to
subsidiarity. On ship emissions, solutions should furthermore be
found at IMO level. Unilateral EU measures would put the European
port and shipping sector in a disadvantageous international
position.

ESPO finally encourages the Commission to support sector-driven
initiatives and projects which aim at self-regulation, promoting
best practices and achieving high European standards in the field of
environmental port management.

5. Modernisation

ESPO principally supports the initiative of the Commission to
create a European Maritime Space without Barriers as a means to
simplify administrative procedures for intra-EU maritime transport.
ESPO will submit a more detailed response to the specific
consultation on this proposal.

As regards an e-maritime approach, ESPO believes that Europe
should give higher political priority and resources to the
implementation of reform programmes which strive for a paperless
customs environment. ESPO however generally feels that paper
bureaucracy should not be replaced by e-bureaucracy and that
IT-based solutions should be cost-effective, also for smaller and
medium- sized ports.

ESPO notes that co-operation between (neighbouring) ports, as
advocated by the Commission, should be left to the initiative of the
port authorities concerned, taking into account local circumstances.
Co-operation projects should furthermore respect EU competition
rules.

Finally, ESPO will extend its ongoing work on benchmarking to
prepare a constructive contribution to the development of a set of
generic European performance indicators as also advocated by the
Commission’s new freight transport agenda. Port authorities
notably have an interest in monitoring both terminal performance and
customer satisfaction with the overall port product. Given the
highly competitive nature of the port industry, it is however
important that such an exercise respects commercial sensitivities.

6. A level playing field - clarity for investors, operators
and users

6.1. The role of port authorities

ESPO fully shares the Commission’s analysis of the
diversity of port management systems existing in Europe and welcomes
in particular the recognition of the need for port authorities to
have a sufficient degree of autonomy and, in particular, for them to
enjoy full financial autonomy. The Commission could encourage the
latter through its intended modification of the Transparency
Directive (see section 6.2).

6.2. Public financing - transparency

ESPO welcomes the Commission’s intention to produce
guidelines on State aid to ports in 2008 and reiterates that these
should be based on the following principles:

State aid guidelines should only cover the port area as such,
i.e. the area for which the port authority is fully responsible, and
be concerned with economic activities only.

Within the port area, a distinction should further be made between
access and defence infrastructure, project-related infrastructure
and superstructure.

Public funding for the provision and operation (including
maintenance) of access and defence infrastructure does not
constitute State aid and should not be notified to the Commission
unless such works would benefit a single user or operator.

Public funding for the provision and operation (including
maintenance) of project-related infrastructure and superstructure
would in principle constitute State aid and should be notified to
the Commission.

Public funding for the provision of project-related infrastructure
however does not constitute State aid, and should therefore not be
notified, if the market economy investor princ iple is met according
to specific conditions.

Public funding for the operation (including maintenance) of
project-related infrastructure and the provision and operation of
superstructure can, when notified to the Commission, be declared
compatible with art. 86(2) of the Treaty.

State aid guidelines should apply to future funding schemes only and
apply in principle to all ports. There should be no distinction
between different categories of ports, with the exception of truly
peripheral ports that are not engaged in international competition
with other ports.

State aid guidelines cannot function without the principle that port
authorities should have financial autonomy.

ESPO is ready to engage in further discussions with the services
of the Commission on this basis.

ESPO also supports the extension of Directive 2006/111/EC to all
merchant ports covered by the State aid guidelines. In addition, a
specific amendment should be included to encourage Member States to
ensure that, as regards management, administration and internal
control over accounting matters, port authorities have independent
status and full financial autonomy.

6.3. Port concessions

ESPO shares the Commission’s view that fairness and
transparency obligations apply when Member States’ authorities
decide to entrust a third party with a portion of port land for the
provision of cargo-handling services through a concession. ESPO
understands that the Commission defines concessions in the broader
sense, i.e. including public domain concessions, land lease
agreements, licences, permits etc.

ESPO believes concessions are very useful governance instruments
for public port authorities working under the landlord model. ESPO
therefore appreciates the Commission’s recognition of the
discretionary powers port authorities should have in using them.

ESPO in particular recommends the following principles, which
are in line with the interpretation provided in the communication:

Port authorities should set selection criteria which reflect the
commercial strategy and development policy of their ports.

Transparency obligations should only apply in case there is a
sufficient connection with the functioning of the internal market.
ESPO believes this rule should extend to situations where the
concession concerns single- user facilities linked to installations
such as steel plants, oil refineries or grain silos.

Durations of concessions must be proportional to depreciation of
investments, allowing a reasonable return on investment but
maintaining a risk inherent in exploitation.

Port authorities should include clauses to ensure that terms of
concessions are respected and to protect the legitimate interests of
ports and local communities, notably with regard to overall quality
and performance of port services. ESPO believes such clauses should
also deal with cases whereby a service provider is taken over by
another company, influencing the competitive situation in a port.

Port authorities could also opt to include concession clauses which
aim at reducing negative externa l effects of port operations,
optimal use of land and modal shift objectives.

Rights of workers in case of transfer of activity should be
protected.

ESPO recognises that, when a concession expires, renewal is
considered equivalent to granting a new concession. ESPO would
however recommend that a port authority can include, if appropriate,
prolongation options in the original concession terms, provided
these are transparent and proportional.

ESPO will study how European port authorities are currently
using concession instruments as governance tools and may produce
further comments and initiatives at a later stage.

6.4. Technical-nautical services

ESPO agrees with the Commission’s interpretation of Treaty
rules with regard to technical- nautical services.

ESPO underlines that, within the area under their jurisdiction,
port authorities should have control over technical- nautical
services and be responsible for giving a license to operate as well
as controlling tariffs where applicable. Technical- nautical
services provided outside the jurisdiction area of the port
authority should be controlled by another relevant competent
authority, but with a participation of the port authority / port
authorities which is / are most directly concerned by the quality
and performance of the services.

6.5. Cargo-handling

ESPO agrees with the Commission’s interpretation of Treaty
rules as regards labour pools.

The interpretation coincides with the principle that service
providers in ports should have full freedom in engaging qualified
personnel of their own choice and employ them under conditions
required by the service, provided all applicable social and safety
legislation is respected.

6.6. Port dues

ESPO agrees that principles of transparency should apply to all
port call costs relating to public tasks or services of general
economic interest, such as charges for the use of general port
infrastructure (port dues) and charges for technical-nautical
services. It is however equally important that the port authority,
where appropriate, can set or control these port charges and adapt
them to meet the requirements of its customers and/or the overall
interest of the port.

ESPO fails to understand however why the Commission singles out
port dues as it is not aware of any major and lega lly upheld
complaints. Neither is there in Europe case-law which would suggest
that there is a problem in this regard. Finally, it must be taken
into account that port dues represent the proportionally smallest
component of total port call costs and have only limited impact on
port choice.

ESPO therefore doubts whether there is any added value in
disseminating best practices on transparency in port dues.

ESPO in any case warns for any attempt to regulate port charges
at EU level and repeats its view tha t differential charging for
environmental or other purposes should be left to subsidiarity. A
better level playing field between ports should be achieved through
a common interpretation of the State aid rules and the general
application of the Transparency Directive to all merchant ports, as
already proposed by the Commission.

6.7. Competition with third countries

ESPO welcomes the Commission’s proposal to set up an
inventory of problems which distort competition between EU ports and
ports from neighbouring non-EU countries. These problems are
especially relevant for ports in the Mediterranean, Black Sea and
Baltic ranges and may relate to public financing, fiscal,
environmental, safety, security and social issues as well as
politically- inspired actions such as the Turkish embargo on Cypriot
ships and Baltic-Russian border crossing problems

ESPO will provide concrete input to this exercise and encourages
that relevant problems are addressed in Community external relations
policy. They may also play a role, where applicable, in accession
negotiations.

7. Establishing a structured dialogue between ports and
cities

ESPO is pleased to see that the Commission seeks to promote and
enhance cooperation between cities and their ports. Integration of
ports into cities and city life combined with a strong awareness,
interest and even pride of citizens in port activities are vital for
the sustainable development of ports.

ESPO agrees that this is in first instance a responsibility of
the port sector itself and is prepared to take on an active role in
this field. The Commission can nevertheless act as a catalyst in
supporting good practice and common learning, encouraging ports to
engage in partnerships with - for instance - tourism, recreation,
culture and heritage sectors.

ESPO particularly welcomes the Commission’s proposal to
have an annual European ports open day and offers to be a partner in
the organisation of such an event. ESPO is ready to encourage active
participation of all its members and can bring toge ther good
practices of ports which already organise such annual events
successfully.

ESPO finally supports the Commission’s intention to assess
the impact of security measures on accessibility of ports and to
provide guidance on how both can be reconciled. ESPO nevertheless
remains skeptical about the added value of having a European model
for multi-purpose access cards.

8. Work in ports

ESPO agrees that dialogue between stakeholders can contribute
significantly to a better understanding between parties concerned
and a successful management of change.

A distinction must be made between a general stakeholder
dialogue and a social dialogue in the narrow sense. Building on the
positive experience of the consultation exercise which preceded the
ports policy communication, the former seems in any case worthwhile
to pursue, both at local and European level. Being mediators and
coordinators of the various commercial and public interests present
in port communities, port authorities are well- placed to initiate
such dialogue processes.

Given that port employment is a key factor to the overall
performance and attractiveness of a port, ESPO also intends to fully
partake in discussions on the agenda of a European sectoral social
dialogue committee.

ESPO can support the Commission’s intention to set up a
mutually recognisable framework on training of port workers but
proposes to first compare the different existing systems of
professional qualifications for port workers.

Finally, ESPO supports the close monitoring of Community rules
on safety and health of workers in ports.

Since 1993, ESPO represents the port authorities, port
associations and port administrations of the seaports of the
European Union. The mission of the organisation is to influence
public polic y in the EU to achieve a safe, efficient and
environmentally sustainable European port sector operating as a
key element of a transport industry where free and undistorted
market conditions prevail as far as practical.